Li Muk Shing v. The Queen

CACC000975/1978

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Coram: Li, J. in Court

Date of Judgment: 13th November, 1978

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JUDGMENT

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1. The Appellant was convicted of two offences namely assaulting a police officer in execution of his duty and possession of dangerous drugs for the purpose of trafficking. The circumstances leading to the Appellant's conviction may be described as straightforward. At about 11.15 p.m. on the 17th July, 1978 two police constables were on duty stopped the Appellant near the Astor Theatre in Nathan Road. The prosecution witnesses said the Appellant was stopped because an informer pointed out the Appellant to the constables. The 1st prosecution witness a constable said that when he revealed his status to the Appellant, the Appellant said 'Ayah!' and punched him and kicked him (the witness) and then ran away. There was a short chase and a struggle. The Appellant was overpowered by the 1st witness and his fellow constables, hand-cuffed and searched. From the Appellants trouser pocket a 'Garden' matchbox was found. It contained 4 packets of drugs. The 2nd prosecution witness, the other constable, who helped to apprehend the Appellant, gave corroborating evidence generally as to the circumstances under which the Appellant was arrested and the drugs found. In Court he was shown the matchbox which contained the dangerous drugs. He said:-

"These are not the packets found on the defendant."

Then he said:-

"Can I take one look again?"

Then he said:-

He was questioned:-

"Do you mean that the packets were not in same condition as now?"

He said:-

"These are not the drugs. Ah Sir, Ah Sir."

That clearly indicated that he had not finished his evidence in chief. However, the prosecuting inspector in Court stopped questioning him. He was then cross-examined as to the circumstances of the struggle and the arrest only.

2. The learned Magistrate then took on the questioning to clarify the matter saying:-

"Please describe the packets of drugs."

He answered:-

"The drugs not as they are now. Now the drugs are outside the packets.

3. Leave was given to defence counsel to cross-examine further and the question was that:-

"In your evidence in chief when you said these are not the packets did you mean that that was not the matchbox as well?

4. There upon Magistrate took over and said:-

"So this (handing the matchbox to the witness Exhibit P1) was not found on the Defendant?"

5. The witness said:-

"I cannot recall clearly."

6. The Court said:-

7. That is the sum total of the prosecution evidence apart one formal witness called to prove that the drugs had been examined by the Government Chemist who certified in the Chemist's Certificate in Exhibit P3. It shows that the total amount of drugs and morphine is the quantity alleged on the charge such as to raise a presumption that the sheer possession of it amounts to trafficking until the contrary is proved.

8. The defence evidence is that at the material time the Appellant was going to join his girl - friend for tea or midnight snack and he was in the vicinity of Astor Theatre in Pak Hoi Street. Someone suddenly grabbed him from the back and he thought he was being robbed. He shouted out 'robbery'. There was a struggle. As soon as he found that the people struggling with him were members of the Police Force he gave up and he was handcuffed. He was pushed aside to the entrance of a staircase and he was searched. Nothing except some money and keys and a paging machine were found on him. Then one of the two persons arresting him went a few feet away, picked up from the pavement a matchbox and insisted that the matchbox containing drugs belonged to him and brought him back to the Police Station where he made a statement. In the statement in the notebook he said the drugs did not belong to him. In corroboration he called a hawker who hawked in the vicinity to corroborate his evidence. The hawker's evidence was that he heard shouts of robbery and he saw the struggle between the Appellant and two Chinese males and one of the Chinese males pushed the Appellant to the staircase. He also saw the Chinese males who pushed the Appellant there went out about 6 and 7 ft. away to pick up something from the ground. He did not see what was picked up from the ground. That is the sum total of the defence evidence.

9. At the end the learned Magistrate convicted the Appellant of both offences. Having summarized the prosecution case and the defence case he said:-

10. The appeal is based on no less than six specific grounds and one general ground. The 1st ground is that the learned Magistrate wrongly admitted into evidence the part of the 1st prosecution witness's evidence as now set out:-

"I stopped him because I was with an informer and the informer pointed him out to me."

And the 2nd prosecution witness said in his evidence:-

"An informer pointed at that man.";

and then later numerous references as to informer.

11. Learned counsel for the Appellant contends that it is improper for any prosecution witness in any case to refer to informer which implied something sinister in the person who had been pointed out by him as a travesty of justice. He directs my attention to the case of Chan Wai-shun v. The Queen Criminal Appeal 255 of 1978 in which my brother Trainor said:-

"That by reason of the conclusion that I have come to in this case I do not intend to dwell on the argument of Mr. Sanguinetti on the point and the only observation I would make is that having regard to all the circumstances in the case I would not have been prepared to accept this as a ground for allowing the appeal. However I would like to make this general observation. I think it is to be deplored that the evidence of police witnesses should be prefaced by remarks as 'a result of the information received', or such remarks as made in this case. Almost invariably such observations are succeeded by a description of something that took place which led to the arrest of the accused. Such observations, in my opinion, inevitably suggest that the police officer or officers know something about the accused which is not going to be revealed to the court. They are, perhaps, excusable when the court is composed of the magistrate alone and he will probably exclude them from his mind when he is considering his ultimate decision. Nevertheless, there is always the possibility that, even sub-consciously, they may influence him. It is much more damaging if the remark is made in the presence of a jury."

12. In that case my brother Trainor was dealing with a remark in the evidence of a witness who said:-

"I had received information that someone was trafficking in dangerous drugs.";

which is quite different from the present case when the witness merely said:-

"He was pointed out by an informer."

13. As far as this case is concerned, the reference to an informer is not half as serious as that in the case of Chan Wai-shun.

14. I respectfully agree with my brother Trainor in that it is preferable and desirable these remarks should be avoided in the course of evidence. A witness may say that I have reason to suspect or I suspect such a such offence is committed or being committed. The jury may then relate the suspicion to the action of the informer. That is prejudicial.

15. However, in this case I do not find that the Appellant has been prejudiced by reference to his being pointed out by an informer. There was no mention of his being a suspect. I see no valid objection in this ground of appeal. No objection can be raised by virtue of this ground of appeal.

16. The second ground of appeal is that the learned Magistrate wrongly concluded that the second prosecution witness meant that the four packets he had seen had been tightly folded inside the small matchbox. In the evidence in chief the 2nd prosecution witness had clearly stated:-

"I look at Exhibit P1; these are not the packets found on the defendant."

17. The 3rd ground of appeal is that the learned Magistrate failed to accept the evidence of 2nd prosecution witness in relation to the matchbox. The Appellant said that the matchbox produced by the prosecution was not the matchbox that contained the drugs. On these two points it is contended that the trial Magistrate should avoid descending into the arena and take up the questioning of witnesses after cross-examination by the defence. However, the Magistrate's function is far wider. Subsection (1) of Section 27 of the Magistrates Ordinance put an onerous responsibility on the Magistrate.

It provides that:-

" No objection shall be taken or allowed to any complaint, information or summons for any alleged defect therein in substance or in form, or for any variance between such complaint, information or summons and the evidence adduced in support thereof, and the adjudicating magistrate shall in all cases give judgment upon the substantial merits and facts of the case as proved before him. and convict the defendant of the offence with which he was charged with such variation as has been warranted by the evidence or of any offence which under the provisions of section 10 (2)(c) could have been tried therewith."

18. Until the Ordinance is amended he is at least entitled to clarify the facts in his own mind. If he sees any variance of the evidence and the charge he must clarify it . In the circumstances he had to put questions to clarify the facts. Hence questions were put to the 2nd prosecution witness who obviously had made a fool of himself in the course of the proceedings. So he asked the questions I repeated a little earlier. Defence counsel was probably allowed to further cross-examine the witness. In the end the witness said in fact he was so woolly that he was not clear of anything. Therefore grounds (2) and (3) must fail.

19. The 4th ground is that the learned Magistrate failed to give any consideration as to the defence's answer to the notebook. The learned Magistrate. of course, did not spell it out in so many words in his statement of findings. Nonetheless he had considered the defence case and found that he accepted the prosecution evidence and rejected the defence evidence.

20. The 5th ground of appeal is that the learned Magistrate failed adequately to evaluate the evidence of the defendant or his witnesses.

21. The 6th ground is that the learned Magistrate failed adequately to evaluate the discrepancies in the evidence of the 1st witness and the 2nd witness for the prosecution in relation to the charge of assaulting a police officer. Dealing with these two grounds I have already observed the learned Magistrate in his short statement of findings dealt with the gist of the prosecution evidence and that of the defence evidence. To my mind, it is not necessary for him to spell out every single aspect of the defence in his statement of findings. Sufficient it is to say that all these have been recorded he must have considered them and therefore the 5th ground must fail.

22. As to the so-called discrepancy in evidence of the assaulting charge, it is of a minor nature. The 1st prosecution witness, who was the person at the receiving end of the assault, said that he was punched and kicked. The observer, the 2nd prosecution witness. observed that he was punched did not say that he was kicked. That is quite reasonable. There is no necessity to come to any different conclusion just because one said that he was punched and kicked and the other did not say that he was kicked. That does not mean that the 1st witness' evidence is untrue.

23. The 7th ground is in that the circumstances the verdict is unsafe and unsatisfactory generally having regard to these grounds individually and collectively.

24. Having dealt with all these grounds I have come to the conclusion that the Magistrate had considered the evidence as a whole. He has not violated any principle to the extent that there the trial was conducted to the prejudice of the Appellant. I see nothing wrong in the conduct of the trial as it stood. There is no reason for me to interfere with his verdict. The appeal against conviction of both of the offences is dismissed.

Representation:

Mr. Stevenson (D.L.A.) for Appellant

Mr. D.Y. Marash, c.c. for Respondent